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The Sources and Limitations of the Criminal Law

    Initially, English law treated all injuries, except homicide, as inflicting private harms that could be compensated. If the injured party accepted compensation, the defendant could not also be criminally sanctioned. After the Norman Conquest, however, the new kings, unhappy with leaving such decisions in private hands, sought to establish their power over crimes by punishing these actors. Although this divergence between torts (compensable acts) and crimes (punishable acts) began more than 800 years ago, and took centuries to complete, even today many acts that constitute crimes also often constitute torts. Therefore, it is still helpful to compare the common law rules of tort, in which compensation to the plaintiff is the major concern, with the common law rules of crimes, in which punishment of the defendant is the sole concern. Keep these comparisons in mind as you read through this book.

    Legislative Sources

    When tort and crime procedures (and remedies) divided, the role of the legislature was enhanced. The English Parliament codified the common law of crimes and—slowly at first, then rapidly—enlarged the list of felonies beyond the initial seven. In the United States, legislative dominance in defining crimes through statutes has continued, on the ground that the protection of citizens was too important to leave to the gradual development by judges of the common law. In addition, courts decided that applying newly defined crimes retroactively would violate the requirement of fair notice, a basic doctrine of English-American law.

    In political theory, legislatures should be at least predominantly, if not exclusively, the source of criminal law in a democracy. To the extent that criminal law reflects moral sentiments of the community, the legislature, as the most democratically elected institution, should prevail. Courts, which are often appointed, should be subordinate to the representative body; even where judges are elected, they are not as frequently reviewed by the populace.

    Statutes are usually written not one provision at a time but address many issues that are considered in a relatively short time. It would be unrealistic to expect legislatures to focus on the precise questions that litigation may pinpoint. Moreover, no matter how carefully written, statutes are in English, a notoriously ambiguous and opaque language. Thus, judicial interpretation of statutes is inevitable.

    The interplay between the common law (developed by courts) and statutes (developed by legislatures) is dynamic. American courts can no longer “create” crimes, as their English forebears did in earlier times (see Chapter 10 (theft) and Chapter 13 (conspiracy)). There is also agreement that there can be no crime unless there is a statute prohibiting the conduct.[3] Still, courts can construe statutes either broadly or narrowly, thus effectively broadening or narrowing the reach of the statutory criminal law.

    The Model Penal Code as a Source of Criminal Law

    In our federal system each state is free within constitutional limits to develop its own common and statutory law. Consequently, state and federal legislatures have enacted differing statutes, and the courts have interpreted English common law principles differently. As a result, American criminal law, while sharing a common basis, is quite diverse. Prior to 1960, it was difficult to speak of “the criminal law of the United States.”


    [3] S. Pomorski, American Common Law and the Principle Nulla Crimen Sine Lege (1975).

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